When a person passes away without a living trust, whether or not a will was left behind, their assets must pass through probate court. Many times the process is simple and straightforward, as family members agree to the proceedings, and the distribution of assets assigned by the courts or designated in the will. However, if a disagreement arises between family members or beneficiaries as to how those assets should be distributed, the validity of a will, or any other issues, probate mediation will be needed.
If you are currently in a situation where your family may need probate mediation, here are the Top 4 frequently asked questions about the process.
1. WHAT IS PROBATE MEDIATION?
The first step in dealing with a probate dispute is setting up a mediation date. Generally, the courts do not want to make choices on probate disputes and would rather the two parties come to an agreement on their own rather than through a drawn-out court battle. During probate mediation, the opposing sides commit to meeting with a professional mediator (usually a probate judge or attorney) to try and resolve the case on their own.
The mediation process is more flexible and less formal than being in an actual court and can often deduce time, legal costs, and court fees. The mediator will not decide on the disputes or make any recommendations to a judge, but rather act as a neutral party to facilitate communication between both sides. Once the mediation is complete (which can take, hours, days, or not be settled at all) a written settlement agreement is drafted and signed at the end of the process so both parties can have an enforceable agreement documented.
2. WHAT IS COURT VS. A PRIVATE MEDIATION?
Court mediation is typically free of charge, as The Los Angeles County superior court offers a sponsored half-day mediation program for families dealing with disputes to use. The program is run by volunteer probate attorneys who donate four hours of their time in order to help families settle their dispute. The four-hour program is not enough time to handle complex cases, but can enough to settle smaller disputes where the issues and discrepancies are straight forward.
Private mediators, on the other hand, can be expensive and they typically cost between $4,000 to $5,000 for a full day. However, compared to the potential amount spent on legal fees for cases that may drag on for months, spending several thousand dollars on mediation can feel like a bargain.
3. WHAT HAPPENS DURING PROBATE MEDIATION?
Probate mediation typically comes with a bit of tension and even hostility between the two opposing parties and clients are often surprised and happy to learn they will not have to spend much time dealing with the other party and their attorneys. Instead, both camps are separated into individual rooms and the mediator bounces from each location discussing the case and offering solutions and compromises.
For example, the parties may come into mediation with one person believing they should receive $100,000 while the other party believes they should only receive $10,000. The mediator will bounce between rooms until the $90,000 gap is closed and both parties come to an agreement. The key to a successful mediation is getting both parties to slowly narrow the gap and realize that making a few concessions on both sides will be cheaper and more timely than actually taking the case to court.
4. IS MEDIATION A SIGN OF WEAKNESS?
No. The party who recommends probate mediation is not necessarily the side with a weaker case but instead the ones who understand the cost and time of litigation. In reality, over 90 percent of probate disputes settle out of court and never reach trial. If a case can be settled, both parties will save time, money, and the burden of dealing with a court case after the death of a loved one.
DO YOU NEED HELP WITH PROBATE MEDIATION?
If you need help with probate mediation, schedule a FREE consultation with our expert attorneys at (800) 403-6078 today. We employ the best probate attorneys in the Los Angeles area and will work with your family to decide on the best course of action. We also handle probate, trust administration, and can help your family build a comprehensive estate plan before a loved one passes away.